The accused must positively prove that dishonored cheques were not issued for existing debts as per Sections 138 and 139 of the Negotiable Instruments Act.

ORAL JUDGMENT

1.The appellant, i.e. the original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure challenging the order of acquittal dated 12/11/2003 passed by learned 4th JMFC, Navrangpura, Ahmadabad (Rural) in Criminal Case No. 564 of 2001, acquitting the present Respondent no.2 / original accused of the charges under section 138 of Negotiable Instrument Act (hereinafter referred to as the 'Act'). This Court granted leave vide order dated 7/5/2004 (Coram: C.K. Buch, J).

2. The case of the complainant could be summarised as under:

The complainant and accused were friends and know each other since long. The complainant was in the construction business at Ahmedabad. The complainant developed 900 sq. meter land in Ahmadabad City, Taluka Ghatlodiya and constructed 8 Row Houses. The Row House No. G/183 was sold to the accused for consideration of Rs.13,61,000=00. As per the understanding between the complainant and accused the payment of consideration i.e. Rs.13,61,000=00 was to be made by the accused and the papers like allotment letter, share certificate, receipt etc. were to be issued in the name of one Devendra Chandulal Bhavsar. According to that understanding between the complainant and the accused all the relevant papers were delivered to the accused along with possession of the Row House No. G/183. The accused also signed an indemnity bond dated 19/8/2000 to this effect. The accused issued following cheques in the name of the complainant; (i)Cheque No: 150124 dated 7/3/2001 for Rs.7,61,000/- drawn on Bank of Baroda, Naranpura Branch, Ahmedabad; (ii)Cheque No.: 150125 dated 2/3/2001 for Rs.6,00,000/- drawn on Bank of Baroda, Naranpura Branch, Ahmedabad.

Accused assured the complainant that the said cheques would be duly honoured and complainant will receive the amount mentioned in the cheque. The complainant relying upon the assurance of the accused handed over the possession of papers of Row House No. G/183 to the accused.

The complainant thereafter as per the instruction of the accused presented the aforesaid two cheques in his bank, i.e. Kheralu Nagrik Sahkari Bank, Sola Road, Ahmedabad on 5/3/2001 and 8/3/2001. Both the cheques were returned with the endorsement “Funds Insufficient” and “Today's balance insufficient” respectively. The complainant's bank intimated the complainant about return of the cheques with the written memo on 8/3/2001. The complainant thereafter issued a notice through his advocate to the accused calling upon him to make payment of the amount mentioned in the cheques. The notice was issued on 13/3/2001 by registered post and also under the postal certificate. It is the say of the complainant that the notices have been received by the accused on 16/3/2001. The accused did not make the payment against returned cheques. The complainant filed complaint on 16/4/2001 before the competent court of Metropolitan Magistrate, Ahmadabad, which came to be registered as Criminal Case No. 564 of 2001. It is the case of the complainant / appellant that the accused appeared before the Court and asked for an adjournment for settling the matter with complainant on 7/6/2001. It is stated by the appellant that the accused thereafter requested for further adjournment on the ground of settling terms for compromise. The accused submitted a purshish on 24/7/2001 declaring to the trial court that he has already paid an amount of Rs.5,00,000=00 against the cheque amount of